In response to A Question for Andy
Ramesh, I have no problem with Romney or anyone else criticizing the president for terminating an inquiry into possible misconduct that would embarrass the administration — and if that’s what the evidence shows happened, I would applaud it. And I have indeed conceded that the institution of inspector general, notwithstanding constitutional infirmity, is probably here to stay. Yet, in agreeing that we should try to make the institution work despite its flaws, I still draw the line at endorsing that which makes it unconstitutional.
As the last three-plus years have shown, it is a very bad idea to encourage the constitutional illiteracy that officers of the executive branch can be legally independent of the chief executive. The latter is the sole repository of executive power under Article II, and thus the source of the power that these officers are delegated to exercise. Things got to the ludicrous point that U.S. intelligence agencies tried to cordon the president off from a counterintelligence investigation, notwithstanding that counterintelligence is done solely for the president (i.e., in support of the president’s constitutional duty to protect the United States from foreign threats). When the president had the temerity to fire the FBI director, the latter’s successor, Andrew McCabe, actually opened a criminal investigation of the president on the theory that the firing obstructed “the FBI’s investigation.” Of course, as a counterintelligence probe, the Russia investigation was the president’s investigation. Yet, the fiction that it was not, and that they were independent actors, was exploited by unelected bureaucrats to undermine the chief executive’s capacity to govern.
I could easily see IGs as in-house watchdogs whose mission is to investigate waste, fraud, and abuse. The Justice Department, for example, has an Office of Professional Responsibility, which has a mission similar to the IG’s but is fully within the DOJ chain of command. Presumably, the culture of an IG institution designed that way, and the potential that politically interfering in it would carry a political cost, would give the IG the measure of practical independence you’re talking about. But unlike today’s IG, such an IG would be a wholly executive institution, unambiguously subordinate to agency or department leadership, and to the president. Congress could summon such IGs to oversight hearings, as it does with other executive officers in departments and agencies that Congress creates.
Alas, that is not the system we have, but that aside, I’m not trying to bring you around to something I already agree with. My objection is to the lawmakers’ suggestion that IGs are de jure independent of the president, not to their criticism of the president for interfering with a legitimate good-governance mission. I think a good analogy is the pardon power. If Senator Romney were to say, “A president cannot pardon all of his cronies who are suspected of crimes,” he’d be wrong. If he were instead to say, “A president who pardons all such cronies grossly abuses his powers, and that Congress should block him until he desists and impeach him if he doesn’t,” that’s a perfectly reasonable argument — and if the president suffers politically as a result, that’s what’s supposed to happen.